NewTalk tag:newtalk.org,2008-02-11://2 2013-06-05T16:30:37Z Where experts discuss America's toughest issues Movable Type Publishing Platform 4.02a Obsolete Law Solutions tag:newtalk.org,2012://2.108 2012-12-11T15:43:24Z 2012-12-12T20:02:01Z Obsolete law is a significant—and ignored—cause of government waste and an obstacle to economic growth. Yesterday’s laws and regulations cannot always adequately address today’s needs. Worse yet, they often senselessly tie the hands of government officials and Americans in every... Admin Obsolete law is a significant—and ignored—cause of government waste and an obstacle to economic growth. Yesterday’s laws and regulations cannot always adequately address today’s needs. Worse yet, they often senselessly tie the hands of government officials and Americans in every sector of society, preventing them from making common sense decisions to address challenges or create opportunities.

Outmoded laws and regulations often perpetuate government programs and bureaucracies that no longer have a sensible purpose. From seventy-five year-old agricultural subsidies to the fifteen separate agencies overseeing food safety, these programs waste tax dollars and gum up the system. Removing them would be a strong step toward putting America on firmer fiscal ground in both the short and long term.

When states and the federal government have attempted to address accumulated law in the past, their efforts have mainly focused on reducing short-term budget shortfalls and not on the structural problems that lead to legal accumulation in the first place. More direct approaches, like sunset laws, have largely failed to change the status quo. As a result, the problem of obsolete law persists—and in fact has grown worse.

Common Good has proposed Spring Cleaning Commissions for both state and federal governments: an independent body of current and former government officials and private citizens that would comb through existing laws, regulations, and programs to identify those which are obsolete and redundant. The commissions would draft plans to simplify and streamline these laws, regulations, and programs, which state and federal legislatures would then have the opportunity to approve or reject in full.

The challenge for this forum is straightforward: What approach would you recommend for addressing obsolete law, why, and how would you implement it?

We’ve asked experts with a variety of perspectives on the relevant issues to share their assessments, and we invite you to share your thoughts in the comments below.

]]> Obsolete law is a significant—and ignored—cause of government waste and an obstacle to economic growth. Yesterday’s laws and regulations cannot always adequately address today’s needs. Worse yet, they often senselessly tie the hands of government officials and Americans in every sector of society, preventing them from making common sense decisions to address challenges or create opportunities.

Outmoded laws and regulations often perpetuate government programs and bureaucracies that no longer have a sensible purpose. From seventy-five year-old agricultural subsidies to the fifteen separate agencies overseeing food safety, these programs waste tax dollars and gum up the system. Removing them would be a strong step toward putting America on firmer fiscal ground in both the short and long term.

When states and the federal government have attempted to address accumulated law in the past, their efforts have mainly focused on reducing short-term budget shortfalls and not on the structural problems that lead to legal accumulation in the first place. More direct approaches, like sunset laws, have largely failed to change the status quo. As a result, the problem of obsolete law persists—and in fact has grown worse.

Common Good has proposed Spring Cleaning Commissions for both state and federal governments: an independent body of current and former government officials and private citizens that would comb through existing laws, regulations, and programs to identify those which are obsolete and redundant. The commissions would draft plans to simplify and streamline these laws, regulations, and programs, which state and federal legislatures would then have the opportunity to approve or reject in full.

The challenge for this forum is straightforward: What approach would you recommend for addressing obsolete law, why, and how would you implement it?

We’ve asked experts with a variety of perspectives on the relevant issues to share their assessments, and we invite you to share your thoughts in the comments below.

]]> DisenfranchisedDad 

The way I would address obsolete laws is with a multi-pronged approach that includes requiring members of Congress and State legislatures to cite their Constitutional authority to enact such laws.

Secondly, I would suggest that as part of any civil or criminal proceeding, that a judge or prosecutor be required to sign an affidavit citing the same for the laws by which they are operating on said issue, especially when it is obvious that there is no compelling government interest to hear such cases, referring such matters to private mediation. Any verdict or sentencing should weigh whether or not the state has a compelling interest in such matters.

If there is a jury involved, I would suggest a provision that supports fully informed juries, and make prosecutorial misconduct punishable with a heavy prison sentence for anyone who is wrongly convicted due to such behavior. Same goes for judicial misconduct.

As a matter of better informing the public about the corrupt nature of our courts, I would suggest enabling any citizen to video record ANY public official in any environment, including our courts. I would also suggest that in our highly technological society that we start doing a better job of record keeping so that we can actually measure the performance of our courts, rather than relying on corrupt Bar Associtions and Judges Associations to make those recommendations for us.

More pertinent to our most fragile citizens, we have a substantial problem concerning our nation's Domestic Relations courts, which make up close to half of all civil litigation and are mired in laws that were created more than 30 years ago that place the state in a position that is superior to that of fit parents. Namely, the "Best Interests of the Child" evidentiary standard, income-based child support models that are not economically sound or means-tested, and grossly expanded definitions for what constitutes "domestic violence", which creates an incentive for women in particular to levy knowingly false charges against men and fathers as leverage in a divorce or child custody proceeding.

As provided by the US Supreme Court, the proper evidentiary standard is the Clear and Convincing Evidence Standard when it comes to deprivations of parental authority. If our courts are not going to adhere to these issues, along with their sworn oath to uphold the Constitution, there is little point in respecting these bodies, since there is a selective enforcement of rights.

]]> Aaron Greenspan 

I'd suggest using PlainSite, sponsored by the Stanford Center for Legal Informatics (CodeX) at Stanford Law School, to annotate as many laws as possible. We've already imported the United States Code, the Code of Federal Regulations, and the codes of several states including California. You can tag statutes or highlight passages and comment on them, and even link them to court cases.

The inspiration for many of the features on PlainSite came in part from the California Money Transmission Act of 2010, sponsored by a lobbying group called The Money Services Round Table, one of whose members (MoneyGram) just settled a criminal fraud case with the Department of Justice for over $100 million. The law is one big protectionist measure to "protect consumers."

Using this kind of technology can help vastly simplify a very complex problem. PlainSite can be found at:

http://www.plainsite.org

]]> Michael Cutler 

No law is more obsolete than the federal controlled substances act (CSA), aka Drug Prohibition, particularly as applied to marijuana. Just as the states lead the rejection of Alcohol Prohibition (ultimately, the repeal of a constitutional amendment enabling this federal intrusion into the private lives of citizens) 80 years ago, Colorado and Washington state (by a 55% vote of its citizens last month) are refusing to enforce federal marijuana prohibition. These states have sent the unambiguous message that marijuana prohibition is obsolete, and counterproductive of the health and safety objectives it was designed to achieve. These states' voters' rejection of marijuana prohibition tracks the consistent national polling since October 2011, revealing that a majority of Americans also support the non-medical legalization of marijuana; about 80% support medical marijuana.

As the Obama Administration contemplates how to respond to these non-medical ("recreational") legalization initiative laws just coming into effect in Colorado and Washington state, it must confront the futility of federal marijuana prohibition enforcement. Despite the futile gestures of federal civil or criminal prosecutions of a few unlucky "examples," state and local law enforcement make more than 99% of all marijuana arrests and without their involvement federal law enforcement cannot enforce prohibition. There are fewer DEA agents (FBI founder Hoover demanded, based on his Alcohol Prohibition experience, that the FBI not participate in the inevitably corrupting job of drug prohibition enforcement) than Houston police officers.

The best federal response to Colorado and Washington, and to the 18 medical marijuana states (with New York, New Hampshire, Illinois and Ohio poised to join them) is "watchful waiting," a forbearance from prosecuting state law-complaint conduct concerning the cultivation and distribution of marijuana medically and non-medically. This policy not only will recognize the futility of federal prohibition enforcement in the face of state prohibition repeal, but also enable Justice Brandeis' visionary role for the states as "laboratories of democracy." Federal forbearance (until by legislation or executive order, marijuana is removed as a drug scheduled under the CSA, leaving its regulation to the states) also would track the will of the people: Recent polling shows popular support, for allowing state marijuana experiments without federal interference, by nearly more than 60%.

]]> DisenfranchisedDad 

Enacting sunset laws is a good idea. Promoting review commissions sounds nice, but is something that has been tried before at varying degrees of success, although most fail to accomplish anything substantive. As a non-lawyer who has spent a great deal of time in our legal system (represented and pro se), who has written legislative proposals, participated in such panels and even testified before committee in support of reform measures in Illinois, I'm appalled at what I've seen done to law-abiding citizens in the name of protecting children, and the miscreants who sit on the bench and in Judiciary committees. Most lawyers and judges who are a part of this conversation see what goes on as standard operating procedure, and that changing the legal system at any level is akin to blasphemy. Getting to any real reforms will require that these interests be effectively dealt with beforehand.

In order to effectively review outdated statutes, we need more than just lawyers and judges involved. We need a much higher standard of review that comports with Constitutional protections, in light of so many of these actors having taken an oath to uphold the Constitution in the first place and then ignore it because they don't understand most of it. I would suggest a national grand jury-style nullification commission that operates in private WITHOUT a majority of judges and lawyers on them, because by and large they will do whatever they can to maintain the status quo. I would involve economists, social scientists, forensic experts, constitutional scholars, or anyone who has the knowledge and expertise to speak to critical issues that can't be white-washed by the Bar Associations. I would also suggest a provision for non-action that automatically sunsets any law or group of laws that they fail to address, forcing them to do the work that they've been assigned to without providing nonsensical conclusions for why something can't be changed.

]]> DisenfranchisedDad 

Here's a similar idea related to a grand jury style Nullification Commission that could be used to decide the fate of outdated and/or unconstitutional laws.

http://constitution.org/reform/us/tx/nullification/proposal_farc.htm

Federal Action Review Commission

Proposed Components:

1. Commission. Establish a "Federal Action Review Commission", as a kind of grand jury, to meet frequently with rotating membership drawn from a pool of constitutionally knowledgeable persons, excluding public employees, contractors, or pensioners, active lawyers, or current members, selected at random by a sortition process. Such commission shall be empowered to review the constitutionality of current or proposed federal legislation, regulations, practices, rules, decisions or other actions, and if it finds such actions to be unconstitutional, to issue an edict, with the force of law, requiring that no state or local officials, employees, or contractors cooperate in the enforcement of such usurpation, and urging state citizens to also refuse to cooperate.

2. Structure and procedure. The Commission shall consist of 23 members, who shall serve for staggered terms of 6 months each, except initially. The selection pool shall be filled each year with one nominee from each of the local grand juries throughout the State. The Commission shall elect its foreperson, adopt rules of procedure, and meet for at least one hour once a week, with a quorum of 16, and a vote of 12 required to issue a report. It may only report findings of unconstitutionality. It shall base its findings on a presumption of non-authority, and require strict proof of constitutionality from logical and textual analysis and historical evidence, not court precedent. It shall be open to direct complaints of the unconstitutionality of federal actions from any citizen, subject only to orderly scheduling which it shall prescribe. It shall have the power to subpoena witnesses, and its deliberations shall be secret, except that it may disclose anything in its reports. It may authorize criminal prosecution by issuing an indictment to any person, not necessarily a lawyer, upon a finding that the court cited in the indictment has jurisdiction and that evidence of guilt is sufficient for trial.

3. Penalties. State and local officials, employees, and contractors shall be duly notified in writing of such edicts within ten days and shall have twenty days to comply or be subject to termination after one written warning and a second failure to refuse to cooperate with federal officials and agents. No official, employee, or contractor shall be penalized for compliance with an edict of the Commission.

4. Funding. A state fund shall be established to pay for private legal counsel and provide financial support of state citizens and agents who refuse to cooperate with unconstitutional federal actions, with the intention to obtain judicial decisions that support the unconstitutionality of the federal actions, and hold the resisting citizen harmless.

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